Original Jurisdiction Superior Court, Bennington Unit,
Criminal Division David A. Howard, J.
William H. Sorrell, Attorney General, and Benjamin D.
Battles, Assistant Attorney General, Montpelier, and Erica
Marthage, Bennington County State's Attorney, and
Alexander Burke, Deputy State's Attorney, Bennington, for
Matthew F. Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellee.
Bridget C. Asay of Donofrio Asay PLC, Montpelier, for Amici
Curiae Cyber Civil Rights Initiative and Vermont Network
Against Domestic and Sexual Violence.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. This case raises a facial challenge to Vermont's
statute banning disclosure of nonconsensual pornography. 13
V.S.A. § 2606. We conclude that the statute is
constitutional on its face and grant the State's petition
for extraordinary relief. I. "Revenge-Porn," or
Nonconsensual Pornography Generally
2. "Revenge porn" is a popular label describing a
subset of nonconsensual pornography published for vengeful
purposes. "Nonconsensual pornography" may be
defined generally as "distribution of sexually graphic
images of individuals without their consent." D. Citron
& M. Franks, Criminalizing Revenge Porn, 49 Wake
Forest L. Rev. 345, 346 (2014). The term "nonconsensual
pornography" encompasses "images originally
obtained without consent (e.g., hidden recordings or
recordings of sexual assaults) as well as images originally
obtained with consent, usually within the context of a
private or confidential relationship."
Id. The nonconsensual dissemination of such
intimate images-to a victim's employer, coworkers, family
members, friends, or even strangers-can cause "public
degradation, social isolation, and professional humiliation
for the victims." C. Alter," 'It's Like
Having an Incurable Disease': Inside the Fight Against
Revenge Porn," Time.com,
[https://perma.cc/G9UP-L984]. The images may haunt victims
throughout their lives. Id. (describing lasting
effects of having one's nude photos posted online and
stating that "this type of cyber crime can leave a
lasting digital stain, one that is nearly impossible to fully
3. This problem is widespread, with one recent study finding
that "4% of U.S. internet users-roughly 10.4 million
Americans-have been threatened with or experienced the
posting of explicit images without their consent." See
Data & Society, "New Report Shows That 4% of U.S.
Internet Users Have Been a Victim of 'Revenge Porn,
'" (Dec. 13, 2016),
[https://perma.cc/26FC- 937V]; see also C. Alter,
supra (stating that "Facebook received more
than 51, 000 reports of revenge porn in January 2017
alone"). Revenge porn is overwhelmingly targeted at
women. D. Citron & M. Franks, supra, at 353-54
(citing data that victims of revenge porn are overwhelmingly
4. Forty states, including Vermont, have enacted legislation
to address this issue. See Cyber Civil Rights Initiative,
40 States DC Have Revenge Porn Laws,
[https://perma.cc/83UK-KKUS] (collecting state statutes).
Federal legislation has also been proposed. See Intimate
Privacy Protection Act of 2016, H.R. 5896, 114th Cong.
[https://perma.cc/RM6V-865X] (proposing to "amend the
federal criminal code to make it unlawful to knowingly
distribute a photograph, film, or video of a person engaging
in sexually explicit conduct or of a person's naked
genitals or post-pubescent female nipple with reckless
disregard for the person's lack of consent if the person
is identifiable from the image itself or from information
displayed in connection with the image," with certain
exceptions); Servicemember Intimate Privacy Protection Act,
H.R. 1588, 115th Cong. (2017),
[https://perma.cc/7ZBK-KT49] (proposing to "amend the
Uniform Code of Military Justice to prohibit the
nonconsensual distribution of private sexual images").
5. Vermont's law, enacted in 2015, makes it a crime
punishable by not more than two years' imprisonment and a
fine of $2, 000 or both to "knowingly disclose a visual
image of an identifiable person who is nude or who is engaged
in sexual conduct, without his or her consent, with the
intent to harm, harass, intimidate, threaten, or coerce the
person depicted, and the disclosure would cause a reasonable
person to suffer harm." 13 V.S.A. §
2606(b)(1). "Nude" and "sexual
conduct" are both expressly defined. The law makes clear
that "[c]onsent to recording of the visual image does
not, by itself, constitute consent for disclosure of the
image." Id. Violation of § 2606(b)(1) is a
misdemeanor, unless a person acts "with the intent of
disclosing the image for financial profit," in which
case it is a felony.
6. Section 2606 does not apply to:
(1) Images involving voluntary nudity or sexual conduct in
public or commercial settings or in a place where a person
does not have a reasonable expectation of privacy.
(2) Disclosures made in the public interest, including the
reporting of unlawful conduct, or lawful and common practices
of law enforcement, criminal reporting, corrections, legal
proceedings, or medical treatment.
(3) Disclosures of materials that constitute a matter of
(4) Interactive computer services, as defined in 47 U.S.C.
§ 230(f)(2), or information services or
telecommunications services, as defined in 47 U.S.C. §
153, for content solely provided by another person. This
subdivision shall not preclude other remedies available at
Id. § 2606(d)(1)-(4).
7. The law also provides a private right of action
"against a defendant who knowingly discloses, without
the plaintiff's consent, an identifiable visual image of
the plaintiff while he or she is nude or engaged in sexual
conduct and the disclosure causes the plaintiff harm."
Id. § 2606(e)(1). In such cases, the court may
order equitable relief, including restraining orders and
injunctions, "[i]n addition to any other relief
available at law." Id. § 2606(e)(2).
Facts and Proceedings Before the Trial Court
8. In late 2015, defendant was charged by information with
violating 13 V.S.A. § 2606(b)(1). In support of the
charge, the State submitted an affidavit from a police
officer and a sworn statement from complainant, which was
incorporated into the officer's affidavit by reference.
The parties agreed that the trial court could rely on these
affidavits in ruling on the motion to dismiss; the parties
later stipulated to certain additional facts as well.
9. The police officer averred as follows. Complainant
contacted police after she discovered that someone had posted
naked pictures of her on a Facebook account belonging to
Anthony Coon and "tagged" her in the
picture. Complainant called Mr. Coon and left a
message asking that the pictures be deleted. Shortly
thereafter, defendant called complainant back on Mr.
Coon's phone; she called complainant a "moraless
pig" and told her that she was going to contact
complainant's employer, a child-care facility. When
complainant asked defendant to remove the pictures, defendant
responded that she was going to ruin complainant and get
10. Complainant told police that she had taken naked pictures
of herself and sent them to Mr. Coon through Facebook
Messenger. She advised that the pictures had been sent
privately so that no one else could view them. Defendant
admitted to the officer that she saw complainant's
pictures on Mr. Coon's Facebook account and that she
posted them on Facebook using Mr. Coon's account.
Defendant asked the officer if he thought complainant had
"learned her lesson."
11. In her sworn statement, complainant provided additional
details concerning the allegations above. She described her
efforts to delete the pictures from Facebook and to delete
her own Facebook account. Complainant stated that the night
before the pictures were publicly posted, she learned through
a friend that defendant was asking about her. Defendant
described herself as Mr. Coon's girlfriend. Complainant
asked Mr. Coon about defendant, and Mr. Coon said that
defendant was obsessed with him and that he had never slept
with her. Complainant "took it as him being honest so we
moved on." The next day, complainant discovered that
defendant posted her nude images on Mr. Coon's Facebook
page. A judge found probable cause for the charge against
defendant in December 2015.
12. In February 2016, defendant filed a motion to dismiss.
She argued that 13 V.S.A. § 2606 violated the First
Amendment to the U.S. Constitution because it restricted
protected speech and it could not survive strict scrutiny.
Defendant also asserted that complainant had no reasonable
expectation of privacy because she took the pictures herself
and messaged them to Mr. Coon without any promise on his part
to keep the pictures private. Defendant cited 13 V.S.A.
§ 2606(d)(1), which provides an exception from liability
for individuals who disclose "[i]mages involving
voluntary nudity or sexual conduct in public or commercial
settings or in a place where a person does not have a
reasonable expectation of privacy."
13. The State opposed the motion. With respect to the First
Amendment, the State argued that the expression covered by
the statute was not protected speech, and alternatively, that
the statute was narrowly tailored to achieve compelling State
interests. As to defendant's second argument, the State
asserted that complainant had a reasonable expectation of
privacy in the pictures. It explained that complainant used
an application that allows one Facebook user to privately
send text messages to another Facebook user, and it argued
that complainant reasonably expected that only Mr. Coon would
access the pictures. The pictures only became public, the
State contended, because defendant logged into Mr. Coon's
Facebook account without permission, accessed his private
messages, and then posted the pictures on Mr. Coon's
public feed where other Facebook users could view them. The
State further argued that the reasonable expectation of
privacy contemplated by the statute concerned the
"place" where the pictures were taken, not the
method by which the pictures were initially shared. It argued
that the method of initial publication was relevant to
whether complainant consented to defendant's disclosure
under § 2606(b)(1), but complainant unquestionably did
not consent to the disclosures here. Finally, the State
asserted that the question of whether complainant had a
reasonable expectation of privacy-either when the pictures
were first taken or when they were later sent to Mr. Coon-was
a question of fact that was not appropriate for resolution on
a motion to dismiss.
14. At the court's request, defendant and the State later
stipulated to the following additional facts for purposes of
the motion to dismiss: complainant sent the photographs to
Mr. Coon on October 7, 2015. The photographs were posted on a
public Facebook page on October 8, 2015. Complainant was not
in a relationship with Mr. Coon at the time the photographs
were sent to him. Defendant did not have permission to access
Mr. Coon's Facebook account. Mr. Coon believed that
defendant accessed his Facebook account through her
telephone, which had Mr. Coon's password saved.
15. Within this factual context, the trial court considered
defendant's facial challenge to 13 V.S.A. § 2606
under the First Amendment. The court concluded that §
2606 imposed a content-based restriction on protected speech,
which required the State to show that the law is
"narrowly tailored to promote a compelling Government
interest," and there is no "less restrictive
alternative" available that would serve the
Government's purpose. United States v. Playboy
Entm't Grp., Inc., 529 U.S. 803, 813 (2000); see
also Williams-Yulee v. Fla. Bar, U.S., 135 S.Ct.
1656, 1665-66 (2015) (explaining State bears burden of
showing statute survives strict scrutiny). Assuming that a
compelling governmental interest existed, the court concluded
that the State failed to show that there were no less
restrictive alternatives available, or to address why civil
penalties, such as those set out in 13 V.S.A. § 2606(e),
were not reasonable and effective alternatives. It thus
concluded the statute did not survive strict scrutiny and
dismissed the State's charges.
16. The court did not address defendant's assertion that
complainant had no reasonable expectation of privacy in her
nude photographs under 13 V.S.A. § 2606(d)(1). It did
note, however, that the facts of this case were not a clear
example of the "typical revenge porn case" because
complainant sent the photographs to a person with whom she
had a past but not present relationship. The court noted that
complainant would not have known Mr. Coon's relationship
status, the effect that such photographs might have on that
relationship, or who might have access to his Facebook
17. The State challenges the court's dismissal of its
charges though a petition for extraordinary relief requesting
that we review the trial court's ruling that § 2606
Facial Validity of Section 2606
18. On appeal, the only issue the parties have briefed is the
facial challenge to § 2606. First, the State argues that
nonconsensual pornography, as defined in the Vermont statute,
falls outside of the realm of constitutionally protected
speech for two reasons: such speech amounts to obscenity, and
it constitutes an extreme invasion of privacy unprotected by
the First Amendment. Second, the State argues that even if
nonconsensual pornography falls outside of the categorical
exclusions to the First Amendment's protection of free
speech, the statute is narrowly tailored to further a
compelling State interest. Defendant counters each of these
19. The facial constitutionality of a statute presents a pure
question of law that we review without deference to the trial
court. State v. Tracy, 2015 VT 111, ¶ 14, 200
Vt. 216, 130 A.3d 196. To succeed in a typical facial attack,
defendant would have to establish "that no set of
circumstances exists under which [§ 2606] would be
valid," or that the statute lacks any "plainly
legitimate sweep." United States v. Stevens,
559 U.S. 460, 472 (2010) (quotations omitted). The Supreme
Court has recognized that in a facial challenge to a
regulation of speech based on overbreadth, a law may be
invalidated if "a substantial number of its applications
are unconstitutional, judged in relation to the statute's
plainly legitimate sweep." Id. at 473
(quotation omitted). Defendant here does not frame his
challenge to the statute as an overbreadth challenge but
instead argues that insofar as the speech restricted by the
statute is content-based, the statute is presumptively
invalid and fails strict scrutiny review. Although we focus
our analysis on whether the statute has a "plainly
legitimate sweep," our analysis does not ultimately turn
on which standard of review we apply to this facial
20. The First Amendment to the U.S. Constitution, applicable
to the states through the Fourteenth Amendment, provides that
"Congress shall make no law . . . abridging the freedom
of speech." U.S. Const. amend. I; Thornhill v.
Alabama, 310 U.S. 88, 95 (1940). This protection applies
to expression without regard "to the truth, popularity,
or social utility of the ideas and beliefs which are
offered." Nat'l Ass'n for Advancement of
Colored People v. Button, 371 U.S. 415, 444-45 (1963).
For that reason, "[c]ontent-based regulations are
presumptively invalid." R.A.V. v. City of St.
Paul, 505 U.S. 377, 382 (1992).
21. The protections of the First Amendment are not, however,
absolute. The U.S. Supreme Court has "long recognized
that the government may regulate certain categories of
expression consistent with the Constitution."
Virginia v. Black, 538 U.S. 343, 358 (2003). These
well-defined and narrow categories of expression have
"such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed
by the social interest in order and morality."
Id. at 358-59 (quoting R.A.V., 505 U.S. at
382-83). Among the speech categorically subject to some
content-based restrictions are advocacy directed to and
likely to incite imminent lawless action, Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969) (per curium); true
threats, Watts v. United States, 394 U.S. 705, 708
(1969) (per curium); obscenity, Roth v. United
States, 354 U.S. 476, 483 (1957); and child pornography,
New York v. Ferber, 458 U.S. 747, 763-64 (1982).
Those regulations directed at other speech that is not
categorically excluded from the broad protection of the First
Amendment may stand only if they are narrowly tailored to
serve a compelling government interest. R.A.V., 505
U.S. at 395.
22. For the reasons set forth below, we conclude that
"revenge porn" does not fall within an established
categorical exception to full First Amendment protection, and
we decline to predict that the U.S. Supreme Court would
recognize a new category. However, we conclude that the
Vermont statute survives strict scrutiny as the U.S. Supreme
Court has applied that standard.
23. Although some nonconsensual pornography may meet the
constitutional definition of obscenity, we reject the
State's contention that the Vermont statute categorically
regulates obscenity and is thus permissible under the First
Amendment. The purposes underlying government regulation of
obscenity and of nonconsensual pornography are distinct, the
defining characteristics of the regulated speech are
accordingly quite different, and we are mindful of the U.S.
Supreme Court's recent rejection of efforts to expand the
definition of obscenity to include new types of speech that
may engender some of the harms of obscenity.
24. The Supreme Court has recognized the government's
"legitimate interest in prohibiting dissemination or
exhibition of obscene material when the mode of dissemination
carries with it a significant danger of offending the
sensibilities of unwilling recipients or of exposure to
juveniles." Miller v. California, 413 U.S. 15,
18-19 (1973) (footnote omitted). The Court has consistently
recognized that a state's interest in regulating
obscenity relates to protecting the sensibilities of those
exposed to obscene works, as opposed to, for example,
protecting the privacy or integrity of the models or actors
depicted in obscene images. See, e.g., Ferber, 458
U.S. at 756 ("The Miller standard, like its
predecessors, was an accommodation between the State's